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The difficulty with an expression of remorse when coupled with a denial of misconduct
BlogRegulatory Blog

Dr Olumide Yusuff (the Appellant) brought an appeal under section 40 of the Medical Act 1983 (the Act) to challenge a decision made by a Medical Practitioners Tribunal (‘The Tribunal’) of the General Medical Council (GMC) during a review hearing in August 2017. At the hearing, the Tribunal found that the Appellant’s fitness to practise was impaired following allegations of misconduct and imposed a 6-month suspension. The appeal addressed important issues relating to the difficulties in assessing genuine insight and remediation of prior misconduct when the allegation is denied.

Facts

In March 2016, the Appellant was found guilty of misconduct following disciplinary proceedings regarding incidents that took place between July and August 2013.

Firstly, it was alleged that the Appellant had dishonestly altered a patient’s notes by attempting to destroy an entry and replace it with false information. Secondly, an allegation of sexual misconduct towards a colleague was made. The third allegation involved inappropriate communication with a hospital housekeeper, followed by dishonesty when discussing the incident with a line manager. The Appellant was also found guilty of breaching an interim order by failing to inform the GMC of an employment position that he undertook in April 2015, as well as failing to disclose the conditions of the order to his line manager.

At the substantive hearing, the Tribunal found that the Appellant’s fitness to practise was impaired and imposed a 12-month suspension. In the Tribunal’s view, the Appellant failed to demonstrate any insight into the severity of his actions or any attempt to remediate his misconduct. As a result, the Tribunal considered there to be a ‘risk of repetition’ due to the Appellant’s lack of insight but did not consider his conduct to be ‘fundamentally incompatible with continued registration.’

The first suspension review hearing took place in March 2017 which resulted in a further 4-month suspension being imposed. The review Tribunal found that while the Appellant had acknowledged the findings of the original Tribunal, he failed to demonstrate appropriate insight and any understanding of the severity of his misconduct. The Panel also felt that the Appellant’s evidence did not reflect adequate attempts to maintain his medical skills or knowledge whilst suspended.

Following a second review hearing in August 2017, the Tribunal found that the Appellant’s fitness to practise remained impaired and imposed an additional 6-month suspension. During the hearing, the Appellant presented oral evidence and produced certificates evidencing his attendance at professional courses to demonstrate attempts to maintain up-to-date medical knowledge. However, in the Tribunal’s view, this evidence was ‘superficial’ and was ‘not accompanied by any meaningful reflection’ when considered alongside his vague responses when questioned. Further, the Appellant’s assertion that he intended to practice as a specialist registrar without undertaking any further clinical training during his extended suspension also reflected a lack of insight from the Tribunal’s perspective. In explaining its finding, the Tribunal also noted that it remained unconvinced that the Appellant had developed genuine and sufficient insight into the impact of his misconduct. The Tribunal stated:

“On paper, you express remorse for your actions, but on questioning during oral evidence, you failed to articulate your reflection convincingly.”

The Appellant challenged the Tribunal’s finding of impairment and sanction, citing six grounds of appeal. The key argument presented by the Appellant was that ‘the determination of impairment was wrong and based substantially on unfair questioning of the appellant in relation to previous denials of fact.’ Other grounds of appeal addressed the length of the suspension as well as issues relating to public interest considerations.

Mrs Justice Yip addressed issues surrounding the inconsistencies that can arise when a practitioner claims to have developed sufficient insight into the impact of their misconduct while maintaining that the allegations are untrue.

She considered the views expressed by Warren J about an acceptance of misconduct in Amao v Nursing and Midwifery Council[2014] EWHC 147. During this hearing, the unrepresented Registrant was asked to comment on whether she agreed with the Panel’s findings in relation to each of the allegations. Warren J stated that it was ‘inappropriate, almost Kafkaesque, to cross-examine Ms Amao in a way which implied she would be acting improperly’ if she did not accept the findings of her regulator. An admission of guilt is not a condition of sufficient insight into the consequences of prior misconduct. However, Mrs Justice Yip distinguished this matter as in her view, a defining feature in Amao was that the Registrant ‘did not appreciate the case she had to meet’ in order to demonstrate adequate insight of her misconduct. It appeared that the Appellant, however, was well-informed of the standard he was expected to demonstrate and Mrs Justice Yip’s view, the lack of sufficient evidence presented by the Appellant was due to his ‘inability to give such evidence.’

The Judge acknowledged that the cross-examination of the Appellant could have been conducted in a better way, she felt that the ‘real difficulty’ in the Appellant’s case was ‘the inconsistency between his non-admission of the misconduct and his expression of genuine remorse over it.’ The Judge concluded that this difficulty was due to the Appellant’s own making, as his responses when questioned were ‘evasive, lacking in clarity and detail and at times rather odd.’

She considered the case of Professional Standards Authority v The Health and Care Professions Council and Doree [2017] EWCA Civ 39, in which Lindblom LJ stated that:

‘In assessing a registrant’s insight, a professional disciplinary committee will need to weigh all the relevant evidence, both oral and written, which provides a picture of it.’

With this in mind, Mrs Justice Yip noted that the Appellant’s documentary evidence was undermined by his oral evidence as he had previously denied the allegations and could not ‘explain his apparent change of heart.’ Ultimately, Mrs Justice Yip stated:

‘The real difficulty…was the inconsistency between his non-admission of the misconduct and his expression of genuine remorse over it.’

The Appellant’s appeal was denied in full.

An admission of guilt in response to allegations of misconduct is not a pre-requisite for sufficient insight to be found by a Tribunal. A Registrant may for example, deny an allegation, but set out how the conduct which is alleged could affect public confidence in the profession or fail to adhere with proper standards of conduct and behaviour. This would show that they understand why the Tribunal and/or public alike may be concerned by misconduct of the nature alleged.

However, an attempt to demonstrate adequate insight by claiming to feel ‘remorse and shame’ for misconduct while denying the allegations may appear inconsistent and superficial. This is entirely logical as remorse and shame are generally associated with guilt, which in turn implies an admission of the misconduct.

A learning point for representatives of Registrants who wish to deny allegations while demonstrating sufficient insight is to ensure that any evidence presented cannot be interpreted as directly undermining this position in practical terms. Any evidence submitted to the Tribunal must be consistent. A wider point to be noted by representatives relates to the importance of ensuring that their client’s position in relation to the allegations is clear from the outset of the hearing. This may safeguard against the possibility that an interpretation of inconsistency by the Tribunal may undermine their client’s evidence.

Compare jurisdictions:Litigation: Enforcement of Foreign Judgments

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